Josephine Hayes reviews the role of the ombudsman.

Josephine Hayes is a barrister at 3 New Square.

The Court of Appeal has ruled that the Pensions Ombudsman can appeal against an order of the High Court which overturns his determination on a point of law under s.151 Pension Schemes Act 1993 (CA Miller v Stapleton 30/7/96).

The current practice in s.151 appeals, derived from Dolphin Packaging Materials v Pensions Ombudsman, is to name the Pensions Ombudsman as a respondent. He thus becomes a party to the dispute in which he was formerly judge. The Court of Appeal has extended this practice beyond what was envisaged in Dolphin by permitting the ombudsman not merely to appear in the High Court, but to appeal from it.

The decision was based on a curious reading of RSC Order 55, which applies to s.151 appeals. Order 55 r.4 requires notice of the originating motion by which an appeal is brought to be served on the person whose decision is being appealed. The Court of Appeal construed this rule as meaning that the decision-maker thereby becomes a party, relying on the definition of "party" in the Supreme Court Act 1981 (although that definition is not incorporated into the RSC).

This implies that Order 55 r.8, which provides that ministers of the Crown and government departments are entitled to be heard on appeals to the High Court arising from their decisions, is superfluous since they already have that entitlement as parties. It also implies that district judges of divorce courts and county courts become parties when served with notices of appeal under the similarly-worded Order 59 rr.9 (2) and 16 (2A).

A more fundamental objection to the ruling rests on the principle that a judge or arbitrator is functus officio once he has "declared his final mind" (Hiscox v Outhwaite 1992). Arbitrators and inferior judges against whom no misconduct is alleged neither appeal nor appear on others' appeals.

The Court of Appeal accepted that the Pensions Ombudsman was functus officio after his determination was delivered, but envisaged that he had some residual role in "proceedings thereafter". As s.151 appeals are on points of law only, this role is obscure. The court accepted that he could not appear as amicus curiae.

The burning questions now are: what is the ombudsman's residual role and who is to pay for his legal expenses?